Partial transcript of Q&A with Sen. Ted Cruz (R-Texas) on the “Drone Wars: The Constitutional and Counter-Terrorism Implications of Targeted Killing”. The Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights hearing was held on April 23, 2013:

Sen. Ted Cruz (R-Texas):
…I appreciate each of the witnesses coming here and presenting very learned and very provocative testimony on this critical issue. I’d like to begin by posing to each of you the hypothetical that I pose to Attorney General Holder because it seems to me on the question of what’s the permissible use of lethal force, there are ends of the spectrum that are relatively easy to answer and then there are areas in the middle that raise far more complicated legal questions. It seems to me that there is no serious question that if a foreign national is overseas and is actively taking up arms against the United States that lethal force can and probably should be used against that foreign national in those circumstances.

Likewise, it seems clear to me that the answer to the hypothetical I posed to the Attorney General is simple and straightforward and that hypothetical was: If a United States citizen is on U.S. soil and we have intelligence to suggest that individual is a terrorist, is involved with Al Qaeda, but at that moment that individual poses no imminent threat, indeed if that U.S. citizen is sitting on U.S. soil at a cafe in northern Virginia, does the Constitution allow the United States government to use a drone to kill that U.S. citizen on U.S. soil?

Now, in my view, the answer to that question is simple and straightforward – it should be absolutely not. It’s the question I’d like to pose to all 6 of you. Does anyone disagree with me on that? Does anyone disagree that the Constitution does not allow killing a U.S. citizen on U.S. soil if that individual does not pose an imminent threat?

[Indication that all 6 witnesses are in agreement.]

Well, I am encouraged by that answer. I wish that the Obama administration had accepted this subcommittee’s repeated invitation to send a representative because the last time the Attorney General was here, he was quite reluctant to pose that answer that all 6 of you just gave.

It seems to me there are many difficult questions about the use of drones and our current policy in using them overseas. There are strategic questions. Using a drone strike to take out a terrorist or even a leader of Al Qaeda means necessarily that individual will not be apprehended, that individual would not be interrogated. We will gain no actionable intelligence, and we will not as a result of any interrogation be able to prevent acts of terror in the future.

And of course with a drone strike, the risk of error is such that if that individual is not who we think it is, there’s no process to correct that mistake. The consequences of mistakes are significant.

That being said, the ambit of this committee is the Constitution, and that’s the principal focus of this hearing.

So I would like to ask a question of Professor Brooks and Professor Somin, which is it seems to me that on the question of the Constitution’s parameters, if we agree with the two extremes I suggested, that you get into the whole gray area between them and I want to suggest four possible criteria and get both of your thoughts as to how each of those criteria impact the constitutional question.

The first is the individual that is the target of the drone strike, whether that individual is a United States citizen, whether that individual is a legal permanent resident, or whether that individual is a foreign national.

The second possible criteria that may be relevant to the constitutional inquiry is the location. Is that individual on U.S. soil or is that individual overseas?

A third possible criteria is whether that individual is actively affiliated with a foreign hostile force such as Al Qaeda.

And a fourth possible criteria is whether that individual poses an imminent threat of violence. And I will note one of the concerns I have about the white paper that was released to NBC is the definition of imminent threat in my view that this administration has put forward is exceedingly broad.

And so I would ask both Professor Brooks and Professor Somin to address your views of the constitutional relevance to each of those four criteria and to the extent imminent threat is important, how should it properly be defined…so that it is a relevant qualifier?

Rosa Brooks, Professor of Law at Georgetown University Law Center:
Thank you, Senator. I think those are perfectly reasonable criteria. I think that the administration as well has put out very similar criteria.

The trouble is the devil is in the details as you suggest. We can say, well, if someone meets the criteria being a member of a foreign force that is taking up arms against the United States or something like that then they become targetable. No one will disagree with that on broad principle.

The trouble is, well, who decides what constitutes evidence, what if you make a mistake and so forth, and the same is true for all of those other criteria. No one will disagree that the notion that the United States has the authority – indeed, the President has the inherent authority AUMF or no AUMF – to use military force in context of a threat of an imminent and serious attack against the United States. But as you suggest, that term imminent has gotten pretty squishy in the administration’s legal memos that we have seen so far. I think that that’s why I would highlight not so much the criteria in the abstract but creating adequate mechanisms to ensure sufficient transparency consistent obviously with the classification concerns and to ensure oversight and accountability in the case of abuse and mistake.

One other thing I would add though is that to me we have a constitutional question but we also have a broader rule of law question. In the Declaration of Independence, our forbearers spoke inalienable rights that all men had and today we would talk about human rights. I think that obviously the fact that someone is not a U.S. citizen while it does mean that they do not have the specific protections of our constitutional law obviously should not make us care less about their legal recourse in the event that they are wrongly or abusively targeted.

And again, while I am fully confident in my colleagues in the administration making their very efforts to prevent abuse and error, I don’t know that that’s a very firm foundation for thinking about the rule of law more general in its future.

Ilya Somin, Professor of Law at George Mason University School of Law:
Thank you very much for the question. I think each of the four points you raised are potentially important in different situations, and let me briefly try to give a few thoughts in each of them.

One is the question of whether the individual is a U.S. citizen or a foreign national. As I noted in my initial testimony, a U.S. citizen can potentially be an enemy combatant in a war and that does make him or her a legitimate target if he is. However, there are special constitutional problems that arise if abuse of targeting of U.S. citizens where doing that might be a violation of the Fifth Amendment, less clear of whether the Fifth Amendment applies to foreign nationals outside of U.S. Obviously, even if it does not, targeting of innocent civilian is still illegal under various domestic and international law even if they’re not a U.S. citizen but the constitutional issues might potentially be different.

The question of location – your second criteria that you raised and it gets more fully covered in Professor Brooks’s written testimony – I would tentatively suggest that there’s a reasonable distinction that should be drawn between terrorists or suspected terrorists located in areas where either the government is supporting the terrorist or they don’t have meaningful control over what is going on in their areas versus countries where there is a rule of law and where we can legitimately resort to working with that government in apprehending these people by peaceful means or at least without resorting to lethal force in the first instance.

Third, I think it does make a significant difference whether the individual in question is actually affiliated with Al Qaeda or one of its associates or whether an independent operator or affiliate with some unconnected group. The Authorization for the Use of Military Force doesn’t give the President the authority to target any and all potentially hostile groups. It is specifically limited to “those nations, organizations, or persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001 or harbored such organization.” So it seems to me that while we are at war with the organizations listed in the AUMF, we are not at war with all potentially dangerous groups. And to the extent that some of the targeting has gone beyond that level, then the laws of war may not apply in the same way. And so it does make a difference. And one of the things that I urge in my written testimony is that Congress consider not abolishing the AUMF but clarifying it to more clearly delineate what, if any, other groups beyond what was listed are legitimate targets.

Finally, the question of imminent threats. I think, as I noted in my written testimony, that for groups we are at war with, we can target them even if they’re not in imminent threat. For people who are not covered by AUMF, I think how imminent the threat they pose is an important issue and one perhaps we can address in more detail with later. I don’t want to take up too much time.

…

Sen. Ted Cruz (R-Texas):
…For counter-terrorism purposes, what is the relative value of killing versus capturing a senior operational leader of Al Qaeda and how is that assessed?

General James Cartwright, United States Marine Corp (Ret.):
Again, I’d have to sit in the hypothetical here but there is a progression of a terrorist organization generally looked at in three stages. One is recruiting and then you have an iconic figure, and in that particular phase eliminating that figure, eliminates the movement. When you move into the second stage, it’s generally considered that’s where you start to build a bench so-to-speak, and if you kill one, another will come behind. And then the third stage is called franchising. They start to proliferate out and they have their own ability to generate.

After you leave the first stage, separate political considerations, killing the leaders has little value because he or she will be replaced. You may get a particular capable one and it takes them a while to recover but generally it is considered in the second and third stages killing the leaders does not really eliminate the movement.

Colonel Martha McSally, United States Air Force (Ret.):
I will speak a little bit to the challenges if you do choose a capture mission over a kill mission as well. But it really does depend on the individual, the circumstances, and the location whether it is more desirable to kill or capture. But let’s just say we’re agreeing maybe you want to capture in more circumstances, then it does depend on the country we’re talking about and the location. It goes back to the “Is there consent? Or are they unwilling and unable? Or are you going to tip them off when you make that call?”

And let’s say that you still decide we do need to do this capture mission, that can be a very complex operation. You’re talking about bringing in special forces. As I mentioned, sometimes the intelligence pops at a moment’s notice. So you have them sitting at a base or offshore on a ship waiting for weeks or months unable to do other missions waiting for the intelligence to come together. Then if you order them in, they may have to fight their way in and fight their way out so there could be some extraordinary civilian casualties associated even with that mission if things go wrong. And then of course the reality that you then have the potential for U.S. casualties or U.S. individuals to then be captured and the strategic implications of that. So those are all the things that are weighed when you are considering – even if you desire to do a capture mission – sometimes the bar is way too high and the risk is way too high and the cost is way too high both in time and opportunity costs for those particular special capabilities to do the capture.

Sen. Ted Cruz (R-Texas):
Thank you. Mr. Bergen, how has, in your opinion, the Obama administration’s focus on targeted killings affected our ability to gather intelligence and analyze situations in the Middle East, such as in Libya or Egypt?

Peter Bergen, Director of National Security Studies Program, New America Foundation:
I think it’s a very hard question to answer, sir. But I will make the factual observation that it was hard to predict the Egyptian revolution. Even the people involved didn’t know there was going to be a successful revolution. But the CIA did seem to have missed the fact that a quarter of the seats in Parliament were taken by the Salafis, who are now the second largest party in Egypt, and at the end of the day, the CIA should be in the business of strategic warning to policymakers. That’s ultimately what it should be doing. So if it is the assessment of you and your colleagues that the CIA mission has sort of been deformed by the fact that it has become more of a paramilitary organization, I think that’s a problem.

Sen. Ted Cruz (R-Texas):
Thank you. Now, a question for Professor Somin. Do you see any tension between the Obama administration’s position that U.S. citizens who are captured aiding Al Qaeda must be tried in Article III courts instead of military commissions but that nonetheless they can be summarily killed with drone strikes. Does that strike you at all as inconsistent?

Ilya Somin, Professor of Law at George Mason University School of Law:
I don’t think it is inherently inconsistent in that when we capture somebody – one, if we consider somebody is an enemy combatant and if they really are a legitimate enemy combatant, then they can certainly be targeted. Once they’re captured, the enemy combatant – I think the administration could choose as a matter of policy to try these individuals in Article III courts as opposed to doing so in military courts although I don’t think it would necessarily be unconstitutional or illegal to go the military court route. I guess I would say that there isn’t an inherent contradiction unless the administration says not only that we’re just choosing as a matter of policy to try certain enemy combatants in Article III courts but actually claiming that it is never permissible to try such individuals in military courts, which I think would probably not be correct.

Sen. Ted Cruz (R-Texas):
Would you agree that on any analysis that it’s a greater potential violation of someone’s rights to take their life than it is to capture and interrogate them?

Ilya Somin, Professor of Law at George Mason University School of Law:
In many cases, I think that’s true. But I don’t think it’s true categorically in that there could be a person who is a legitimate target and therefore can be killed in a battlefield but if captured there are still legal limits on the methods we can use to interrogate them. For instance, we should not be able to engage in torture, which is illegal under domestic and international law.

Sen. Ted Cruz (R-Texas):
Sure…Professor Somin, Professor Brooks, there has been some considerable discussion about the potential role of a FISA-like court dealing with either designating individuals as terrorist leaders or having some role in drone strikes. And it strikes me that Sen. [Lindsey] Graham raised serious constitutional questions about the Article II role of the commander-in-chief and the appropriate ability of this Congress to restrict the decisions of the commander-in-chief directing military operations against foreign hostile forces. I would be interested in both of your assessments of those constitutional concerns and the right boundaries that would respect those constitutional concerns.

Ilya Somin, Professor of Law at George Mason University School of Law:
Certainly, I think everybody or almost everybody agree that the President has important powers as commander-in-chief. At the same time, Congress has the authority under Article I to make rules for the government and regulations of the land and naval forces, which I think includes the President when he is acting in his role as commander-in-chief. So for instance, Congress does things like restrict the kind of weapons that can be used in the battlefield. It restricts the treatment of prisoners when they’re captured and so forth. And therefore I think it’s also permissible for Congress to require a certain amount of process before certain kinds of operations are ordered and I think Article I gives Congress that authority just as it gives it authority to make the other kinds of regulations that I suggested. Obviously, the fact that Congress has authority doesn’t mean that Congress should always exercise it to its fullest extent and various scholars and others have talked about how to strike the right balance of independent review and how that should be done.

Rosa Brooks, Professor of Law at Georgetown University Law Center:
Senator, Congress also of course has the power to define and punish offenses against the laws of nations and that would also, I think, be a useful mechanism in this regard.

The only thing that I would add though is that it’s a who guards the guardians problem here. Because clearly we all agree that if there were to be some future President who was, say, insane and who simply asserted that there was a war against some perfectly innocent group of people and that that justified the use of lethal force, we would wish there be some mechanism – short of impeachment – to try to restrain that abusive power. I think the question is I don’t think that the commander-in-chief power and the fact that the President obviously has a great deal of discretion when it comes to armed conflicts and foreign policy issues needs to necessarily restrain Congress from all oversight.

I think you can certainly design a court, particularly if you focus on the after the fact review rather than the advance approval of targeting. I think you can certainly with relative ease devise a judicial process that wouldn’t pose any of those problems…

Professor Somin mentioned earlier and I think it’s very instructive and worth reading for anyone who hasn’t had the time to take a look at the Israeli Supreme Court’s 2006 decision on targeted killings. It’s a very similar legal system in many ways and obviously the challenges they face domestically with regard to terrorism are far than those we face, luckily for us. But that court resoundingly rejected the notion that these decisions were non-judiciable…The question of whether a particular body of law applies in the first place to a particular body of facts that’s precisely the kind of decision that the judiciary and only the judiciary is normally considered to be qualified to make.